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Law Offices of Kelvin Lee
1455 San Marino Avenue, Suite D, San Marino, CA 91108
Phone: (626) 524-5038 Fax: (626) 577-9129 ▪

Q. Do I qualify for Social Security disability benefits?
A: The Social Security Disability program is America’s safety net. It includes the so-called “regular” disability program (SSDI), the program that calculates benefits based on a work record within the past five years. There is also Supplemental Security Income  (SSI), for people with no appreciable earnings record. SSI protects the very young, the homeless, the mentally ill – people whose impairments make them unemployable.  To qualify for Social Security disability benefits (SSDI) or Supplemental Security Income (SSI), you must have an impairment that prevents any kind of full time work, even the lightest job. Your disability must have lasted or be expected to last 12 consecutive months.

Before even arriving at the question of whether a person is disabled, Social Security screens applicants for SSI eligibility, based on financial assets and countable income. The medical disability standard is the same for all Social Security disability programs. It is also possible to be eligible for both SSI and “regular” Social Security disability payments.

If past earnings cause the SSDI payment to be low, it may be supplemented up to the SSI amount if all financial qualifications are met. SSI eligibility entitles a person to immediate state Medicaid coverage in most cases. SSDI gives entitlement to Medicare after a waiting period.
SSI has an asset limitation and evaluates resources (the things you own) to see if you have more than $2000 for an individual or $3000 for a couple. The value of a home and usually of a car is excluded. There is no asset limit for SSDI, it is like an insurance policy.

Cash is a countable asset for SSI, as are bank accounts, stocks and bonds. It also includes earnings and anything that can be converted to cash. Social Security benefits count, and so do other pensions and the value of goods and services you are given by someone else – such as food, clothing and shelter.
To get SSI, you are required to apply for any other available benefits, like food stamps, Medicaid and VA benefits.

Q. Is it hard to apply for Social Security disability benefits?
A. No. There are 3 ways to apply for a Social Security disability claim. The first is to go to the Social Security District Office and file the claim in person. The second way is to call Social Security at 1-800-772-1213. They will arrange for a telephone interview for you. Once the interview is finished they will send necessary forms for you to fill out. All the basic information will have been collected during the phone interview. The third way is to apply online at
Q. When can I file for Social Security disability benefits?
A. You can file for Social Security disability benefits on the day that you become disabled if you believe that you will be out of work for one year or more. Sometimes hospital social workers can help you and your family make the initial contact with Social Security.
Q. Is it necessary to hire a representative to represent me in my Social Security disability claim?
A. Although an applicant can proceed unrepresented, the success rates are significantly different for represented and unrepresented claimants.

Disability denials are, unfortunately, what most disability claimants can expect to receive after they file a claim for benefits with the Social Security Administration. Nationwide,
during 2010, only 23.7% of initial claims were granted, and only 6.3% of reconsiderations (the first step of appeals).  However, when claims were appealed before an administrative law judge at a hearing, 66.5% of claims were eventually granted.  Therefore, having a qualified attorney represent you with your disability claim can definitely improve your chances.
Social Security does its best to process cases, but the backlogs are well known. A good attorney will gather all the necessary information THE FIRST TIME, and increase your chances for success.

Q. How do representatives who help Social Security disability claimants get paid?
A. Cases are generally handled on a contingency basis. That means the representative receives a fee only if you win your case. Normally 25% of your back due benefits, with a maximum of $6000, and must be approved by Social Security. If you do not win your case there is no fee. There are also costs in each case for which you will be responsible. These costs are generally fees paid to doctors for medical records.
Q. Can I get Social Security disability benefits if I expect to get better and return to work?
A. You have to have been disabled, or expect to be disabled, for at least one year to be eligible. So, if you expect to be out of work for one year or more on account of illness or injury, you should file for Social Security disability benefits. Do NOT wait until the year has elapsed before you begin. Get legal help at the outset.

Q. I got hurt on the job. I am drawing worker's compensation benefits. Can I file a claim for Social Security disability benefits now or should I wait until the worker's compensation ends?
A. You do not have to wait until the worker's compensation ends and you should not wait that long. An individual can file a claim for Social Security disability benefits while receiving worker's compensation benefits.
Q. I have several health problems, but no one of them disables me. It is the combination that disables me. Can I get Social Security disability benefits?
A. Social Security is supposed to consider the combination of impairments that an individual suffers in determining disability. Many, perhaps most claimants for Social Security disability benefits have more than one health problem and the combined effects of all of the health problems must be considered.
Q. My doctor says I am disabled so why is Social Security denying my Social Security disability claim?
A. Social Security's position is that it is not up to your doctor to determine whether or not you are disabled. It is up to them and they will make their own decision regardless of what your doctor thinks.
Q. If I am approved for Social Security disability benefits, how much will I get?
A. For disability insurance benefits, it all depends upon how much you have worked and earned in the past.  A national average amount is $1129.00 per month.  For disabled widow's or widower's benefits, it depends upon how much the late husband or wife worked and earned. For disabled adult child benefits, it all depends upon how much the parent worked and earned.

For all types of SSI benefits, there is a base amount that an individual with no other income receives. The monthly maximum Federal amounts for 2014 are $721 for an eligible individual and $1082 for an eligible individual with an eligible spouse.  In addition, California pays a State Supplemental Payment (SSP) of 156.40, making the maximum SSI/SSP amount $877.40 for an individual. Other income that an individual has reduces the amount of SSI which an individual can receive.
Each year we all receive a report from Social Security about our retirement benefits.. This report also has the dollar figure you’d receive if you were disabled. A spouse and children are also eligible in most cases.

Q. VA says I am disabled, so why is Social Security denying my Social Security disability claim?
A. It is Social Security's position that VA decisions are not binding upon them. Social Security and VA have very different standards for approving disability claims.
Q. If I am found disabled how far back will Social Security pay benefits?
A. Benefits can be paid for up to one year prior to the date of the claim, if the medical records support this. For a Disabled Adult Child, benefits begin as of the onset date, but benefits cannot be paid more than six months prior to the date of the claim.

If you have made prior applications for SSDI or SSI, skillful legal help may allow you to reopen that old application and reach back for more benefits.  The medical records must support this and other criteria must be met.  This is one of the most critical differences between having an attorney and doing an application on your own.  Social Security will look got ways to reopen old applications.  A qualified attorney can help find an earlier onset date and secure greater benefits.

SSI benefits begin at the start of the month following the date of the claim. For SSDI and for Disabled Widow’s and Widower’s Benefit, the benefits begin five months after the person becomes disabled.
Q. If Social Security tries to cut off my disability benefits, what can I do?
A. You should appeal immediately. If you appeal within 10 days after being notified that your disability benefits are being ceased, you can ask that your disability benefits continue while you appeal the decision cutting off your benefits. You may also want to talk with an attorney about representation on your case, but you should file the appeal immediately.  The process by which Social Security evaluates whether a recipient continues to be disabled is called Continuing Disability Review (CDR) and considers whether there has been “medical improvement” to where you are not longer disabled. Getting a letter from a treating physician is very important, and that is essentially what the letter needs to say, that there has not been medical improvement and your medical condition(s) remain disabling.

Q. What is the difference between Medicare and Medi-Cal (Medicaid)?
A. Medicare is the federally operated health care program for people who are elderly or disabled. Medi-Cal is California’s Medicaid program, a state-run program that offers insurance coverage to certain people with low incomes, including the aged and disabled

Medicare is a federal insurance program paid out of Social Security deductions. All persons 65 or older who have made Social Security contributions are entitled to the benefits, as well as persons under 65 with disabilities who have been eligible for Social Security disability benefits for at least two years, and persons of any age with end-stage renal disease.

Medicare has several parts including Hospital Insurance (Part A) and Medical Insurance (Part B). Those persons eligible for Social Security or Railroad Retirement benefits as workers, dependents or survivors, are eligible for Part A, Hospital Insurance, when they turn 65. If a person has not worked long enough to be covered for benefits, s/he may enroll in Part A and pay a monthly premium. If Medicare Hospital Insurance is purchased, that person must also enroll in Part B, Medical Insurance.

Participants in the Medicare program are liable for co-payments and deductibles as well as for monthly payments for Part B coverage. Medicare is not based on financial need. Anyone who meets the age, disability and/or coverage requirements is eligible.
Medicare does not pay for all medical expenses, and usually must be supplemented with private  insurance ("medigap") or consumers can enroll in an HMO or Medicare Advantage plan that contracts with Medicare. After 3 days of prior hospitalization, Medicare will pay up to 100% for the first 20 days of skilled nursing care. For the 21- 100 days, the patient will pay a co-payment. The premiums and copayments are increased every year. There will be no Medicare coverage for nursing home care beyond 100 days in any single benefit period.
It should be noted that Medicare only pays for “skilled nursing care,” does not pay for “custodial care” and the average stay in a nursing home under Medicare is usually less than 24 days. Thus, few can look to Medicare to pay for any substantial nursing home costs.
Medi-Cal is a combined federal and California State program designed to help pay for medical care for public assistance recipients and other low-income persons. Although Medi-Cal recipients may receive Medicare, the Medi-Cal program is not related to the Medicare program. Medi-Cal is a need-based program and is funded jointly with the State of California.
Q. What Does Medi-Cal Cover?
A. Medi-Cal pays for health care services which meet the definition of "medically necessary." Services include: some prescriptions (although the Medicare Part D program now covers most prescriptions), physician visits, adult day health service, some dental care, ambulance services, some home health, X-ray and laboratory costs, orthopedic devices, eyeglasses, hearing aids, some medical equipment, etc.
All covered services, or the remaining costs over the share of cost of nursing home care, will be covered if the individual meets income/resource requirements. Some services such as home health care, durable medical equipment, and some drugs require prior authorization.
Nursing home care is covered if there is prior authorization from the physician/health care provider. Residents are admitted on a doctor's order and their stay must be "medically necessary". Residents are allowed to keep $35 of their income as a personal needs allowance. Residents with no income may apply for the Supplemental Security Income/State Supplemental Program (SSI/ SSP), and, if eligible, they will receive a payment of $50 as a personal needs allowance.
If the individual qualifies for Medi-Cal, s/he does not need private "medigap" or HMO insurance to pay for costs, though if such insurance is carried, the premiums are deducted from income when computing the share of cost, and therefore costs the beneficiary nothing. If the HMO coverage includes drug benefits, maintaining the HMO coverage may become more important , as the beneficiary will continue to receive drug benefits from the HMO, which may be more comprehensive than the Medicare Part D coverage.
Q.  Which program pays for what services when an individual is eligible for both Medicare and Medi-Cal?
Dual eligibles are individuals who are eligible for both Medicare and Medi-Cal. Medicare is the primary payer for most medical services for dual eligibles, including doctor and hospital visits.

For dual eligibles, Medi-Cal often is referred to as the “wrap around” benefit. Medi-Cal covers most of dual eligibles’ out-of-pocket costs, such as deductibles and co-pays. Medi-Cal also pays for most long-term services and supports, including nursing home care and home- and community-based services, such as the In-Home Supportive Services program (IHSS).

Below is a chart which provides in more detail which program covers which services.
Q. How can Medi-Cal pay for Long Term Custodial Care in a Skilled Nursing Facility?
A. One primary benefit of the Medi-Cal program is that, unlike Medicare, Medi-Cal will pay for long term care in a nursing home once the patient has qualified, even if it is only considered “custodial” care. There is no requirement that the patient need ongoing skilled nursing care or rehabilitative therapy. As a result, Medi-Cal will continue to subsidize a qualified resident even if the patient only needs ongoing assistance with daily functioning, for example, help with meals, taking medications, toilet assistance, turning and the like.

Fortunately, when the need for long term nursing home care arises, the Medi-Cal program is there to help. In fact, in our lifetime, Medi-Cal has become the long term care benefits program for the middle class. However, eligibility for Medi-Cal benefits requires that certain financial tests be met regarding the applicant’s monthly income and the nature and value of his or her assets.

If an applicant’s financial profile does not immediately meet Medi-Cal’s requirements, Medi-Cal will likely tell the applicant only that he or she does not qualify for benefits and must first “spend down” his or her savings on care until those savings are reduced to permissible limits. Only then may he or she re-apply. Unfortunately, that is often not the best advice. There may, indeed, be other options. We find, however, that these options are not generally known by the Medi-Cal Eligibility Workers who review the applications, or, if known, are rarely discussed.

This is not to disparage the dedicated service of so many well-intentioned Eligibility Workers; it is merely to say that informing applicants of other options and planning strategies is not part of their job and is generally not part of their training. Indeed, some Eligibility Workers, knowing their limitations, will themselves sometimes suggest that an applicant consult an Elder Law attorney before re-applying.

Keep in mind that planning for using Medi-Cal is really part of a broader plan that includes:
(1) Establishing Eligibility,
(2) Minimizing the applicant’s Share of Cost, and
(3) Avoiding a Recovery Claim after death. Too often, the focus of persons applying for Medi-Cal only takes account of the eligibility concerns, overlooking all others.
Further, such planning should also be combined with the following Estate Planning goals:
(4) Avoiding probate after death,
(5) Providing for future mental incapacity,
(6) Making provision for the needs of an Incapacitated Spouse,
(7) Minimizing taxes, and
(8) Coordinating retirement benefits with the overall plan design.

An integrated plan, which takes account of all aspects, is essential and can result in substantial savings and peace of mind to the senior citizen and his or her family